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Cite as: 2021 GWD 30-406, [2021] CSOH 93, [2021] ScotCS CSOH_93

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OUTER HOUSE, COURT OF SESSION

[2021] CSOH 93

P963/20

OPINION OF LORD WEIR

In the cause

WESTEND RESIDENTS CIC

Petitioners

against

DUNDEE CITY COUNCIL

Respondents

Petitioners: Logan; Campbell Smith LLP

Respondents: Armstrong QC; Gillespie Macandrew LLP

10 September 2021

Introduction

[1]

The petitioners are a community interest company incorporated to represent the

interests of the residents of the West End Suburbs Conservation Area ("the conservation

area") in the city of Dundee. The respondents are the planning authority for the Dundee

City Council area in terms of the Town and Country Planning (Scotland) Act 1997 ("the 1997

Act"). Blackness Avenue is a residential street situated within the conservation area.

[2]

On 1 September 2020 the respondents granted an application submitted through

their agent, Steve Pyer of "Ride On Scotland", for planning permission for the installation of

an e-bike docking station, comprising 10 docking points and a terminal ("the

development"), on the public footpath outside the entrance to the Category B listed

tenement property at 5 Blackness Avenue ("the Permission"). The petitioners, on various

grounds, seek declarator that the Permission purportedly granted is ultra vires and of no

effect.

Background

[3]

The background to the submission of the application for planning permission for the

development is taken from a report by Suller & Clark (no 6/8 of process) prepared on behalf

of the petitioners in November 2020 as part of a review of the granting of the Permission, the

essential facts of which I did not understand to be disputed. The original proposal was part

of a wider E-bike scheme being developed throughout the Dundee City Council area by the

petitioners and their application agent, Ride on Scotland. There had already been a number

of other applications for E-bike docking stations granted throughout the city, albeit

primarily in sites within the existing public realm in commercial, industrial, retail or

education environments on main thoroughfares. The only other application relating to a site

adjacent to residential properties, on the footpath at Magdalen Yard Road, Dundee, was

objected to by residents and withdrawn.

[4]

The application with which this petition is concerned was submitted on

20 September 2019, and advertised in the Evening Telegraph as a development affecting a

conservation area on 6 December 2019. It attracted five letters of objection on issues relating

to (i) adverse effect on a listed building, street scene and conservation area; (ii) noise

nuisance; (iii) poor design; (iv) privacy and overlooking of neighbours affected;

(v) road/pedestrian safety, (vi) impact on access to waste bins and parking spaces; and

(vii) unsuitability of the site where disability access was required.

[5]

The application was subsequently assessed by an appointed officer of the

respondents, Caitlin Duffy. Her assessment was recorded in the "Report of Handling by

Appointed Officer" dated 31 August 2020 (no 6/2 of process). Following Ms Duffy's

assessment and consideration of the application, Robert Gray, a senior manager in the

respondents' planning team, authorised the decision to approve planning permission. The

Permission was duly issued on 1 September 2020 (no 7/10 of process).

Legal framework

[6]

Regulation 13 of the Town and Country Planning (Development Management

Procedure) (Scotland) Regulations 2013 ("the 2013 Regulations") provides inter alia as

follows:

"13.- Design and access statements

(1)

Subject to paragraph (3), an application for planning permission for

development belonging to the categories of national developments or major

developments must be accompanied by a design and access statement.

(2)

Subject to paragraph (3), an application for planning permission belonging to

the category of local developments where the land to which the application relates is

situated within-

(a)

a World Heritage Site;

(b)

a conservation area;

(c)

a historic garden or designed landscape;

(d)

a National Scenic Area;

(e)

the site of a scheduled monument, or

(f)

the curtilage of a category A listed building,

must be accompanied by a design statement other than where the development in

question comprises the alteration or extension of an existing building.

(3)

This regulation does not apply to

(a)

an application for planning permission made under section 42 of [the

Town and Country Planning (Scotland) Act 1997];

(b)

an application for planning permission for

(i)

engineering or mining operations;

(ii)

householder development, or

(iii)

a material change in the use of land or buildings: or

(c)

an application for planning permission in principle.

(4)

A design statement is a written statement about the design principles and

concepts that have been applied to the development and which -

(a)

explains the policy or approach adopted as to design and how any

policies relating to design in the development plan have been taken into

account;

(b)

describes the steps taken to appraise the context of the development

and demonstrates how the design of the developmen t takes that context into

account in relation to its proposed use; and

(c)

states what, if any, consultation has been undertaken on issues

relating to the design principles and concepts that have been applied to the

development and what account has been taken of the outcome of any such

consultation."

[7]

Paragraph 4.9 of the Dundee Local Development Plan 2019 ("the Local Development

Plan") provides as follows:

"Design statements will be required to accompany planning applications for all

National and Major developments and for Local developments where it affects the

character and/or appearance of a Conservation Area, Historic Garden/Designed

Landscape, curtilages of Category A listed buildings or the site of a Scheduled

Monument. A design statement may also be required to accompany a planning

application for other forms of development where design sensitivity is considered a

critical issue."

Submissions for the petitioners

[8]

Counsel for the petitioners submitted that there were serious errors in the process by

which the permission was granted. In particular, it was a matter of agreement that no

design statement was prepared to accompany the application for planning permission. That

the application should have been accompanied by a design statement was a mandatory

requirement of regulation 13(2) of the 2013 Regulations. Counsel recognised that

regulation 13(3) listed certain exceptions to that requirement, and that those exceptions

extended to an application for planning permission for engineering operations. T he

respondents appeared to place reliance on that exception but that reliance was ex post facto

and disingenuous. The respondents had lodged an affidavit sworn by Caitlin Duffy on

7 April 2021. She was the planning officer responsible for assessing the application for its

compliance with statutory requirements. It was apparent from her affidavit that Ms Duffy

did not give any consideration to the question whether the installation of the docking station

connoted an engineering operation at all. In considering whether a design statement was

required all she appeared to have done was compare the application with other applications

and/or developments where she had previously required one.

[9]

In any event, the installation of a docking station could not properly be characterised

as an engineering operation. Section 277 of the 1997 Act defined "engineering operations"

as including "the formation or laying out of a means of access to roads". That definition was

scarcely helpful. But the term should be given its ordinary meaning in the English language.

It must mean operations of the kind usually undertaken by an engineer in the sense of

calling for the skills of an engineer (Fayrewood Fish Farms Ltd v Secretary of State for the

Environment and Hampshire Council [1984] JPL 267). Whether or not something was an

"engineering operation" was a matter of statutory construction and not one where the court

was obliged to defer to the planning authority as a matter of "planning judgment".

Approached on that basis there was nothing in the installation of a completed docking

station containing docking points which required an engineer, or involved an engineering

operation.

[10]

The argument advanced by the respondents that the Report of Handling addressed

all of the issues which would have been raised in a design statement should be rejected.

Design statements required to be drafted in accordance with policies and principles in both

Planning Advice Note ("PAN") 68 and PAN 78. Preparation of a design statement triggered

a process which was iterative in character, and different from that which would be followed

where no such statement was necessary. For example, in meeting the requirements of

regulation 13(4) of the 2013 Regulations, a design statement would require an appraisal

setting out how such a modern adaptation as the docking station would fit in with the

surrounding conservation area in a position outside a listed building. It would also require

to state what consultation had been undertaken in relation to the design principles and

concepts that had been applied and what account had been taken of the outcome of any such

consultation. It was clear that the Report of Handling fell far short of the requirements for a

design statement. It stated in terms that "no consultations were received" when there was a

positive obligation to initiate such consultation. Moreover, the policy considerations in the

Report of Handling were entirely in the context of the Local Development Plan. Neither

PAN 68 nor PAN 78 were even mentioned. Had a design statement accompanied the

application for planning permission it was possible that a different decision may have been

reached. The petition was not, therefore, academic. The absence of a design statement

vitiated the decision to grant planning permission for the development, and the order for

declarator should be granted as craved.

Submissions for the respondents

[11]

It will be apparent from my summary of his submissions that counsel for the

petitioners' concentration was on the absence of a design statement from the application for

planning permission, and the legal effect of that. He did not make submissions in support of

those averments in the petition which criticised the consistency of the grant of planning

permission with policies 51, 49 and 8.60 of the Local Development Plan (statements 6(d), (e)

and (f), respectively). To the extent that a substantial part of senior counsel's response dealt

with those issues, I have not considered it necessary to rehearse those submissions at this

point.

[12]

However, addressing those arguments which were insisted on, senior counsel

referred to four particular points from which he submitted that the petition should be

refused. First, the lack of a design statement was not an issue identified by any perso n who

did object to the application. Indeed the petitioners' own planning consultants had not

raised it as an issue, and the petitioners had produced no expert evidence either that a

statement should have been submitted or that the installation of the docking station was not

an engineering operation.

[13]

Secondly, the planning officer who processed the application, Ms Duffy, did not

consider that a design statement should have accompanied the application. In any event,

the officer who authorised the decision to approve planning permission for the application

to install the docking station, Mr Gray, considered that the installation of the docking station

could "reasonably be taken to constitute engineering operations" (affidavit of David Gray

dated 11 March 2021). That was a matter of judgment which, in the absence of any evidence

to the contrary, was not open to challenge. Accordingly, the petitioners had not made out a

basis for the assertion that a design statement should have accompanied the application for

planning permission.

[14]

Thirdly, the petitioners had neither averred nor submitted that the respondents, or

their planning officer, had failed to consider the proposed development against policy 1 of

the Local Development Plan. Policy 1 was concerned with design. It was all-encompassing

and provided the test for determining whether a development met the requirement for high

quality design and placemaking. While a design statement was no doubt intended to assist

in that determination, whether a development complied with policy 1 was a matter of

planning judgment for the planning officer. The Report of Handling set out the basis upon

which it was concluded that it did, and that conclusion was not itself challenged.

[15]

In that connection, senior counsel rejected the petitioners' submission that the Report

of Handling did not address all of the issues which might have arisen in a design statement.

That submission was made under reference to PAN 68 and PAN 69. PAN 68 provided

advice on design statements and why they were useful tools but recognised that they could

be presented in various formats. PAN 78 similarly provided advice on inclusive design. But

both were advisory documents. The assessment of the proposal against the relevant

development plan policies and other material considerations set out in the Report of

Handling covered all of the issues which were relevant to the determination of the

application for planning permission. Reliance on the reference in the Report on Handling to

the absence of consultations having been received was misconceived. That was properly

understood to be a reference to consultations involving other local authority departments.

[16]

Accordingly, fourthly, even if the court was of the view that a design statement

should have accompanied the application, it was submitted that the petitioners had suffered

no substantial prejudice by its absence. An applicant will be refused a remedy when he

complains only of a procedural failure if that failure has caused him personally no such

prejudice (Walton v Scottish Ministers [2012] UKSC 44, paragraph [112]). The Report on

Handling set out an assessment of the proposal against the policies of the Local

Development Plan and an appraisal of the context of the development, along with

consideration of the objections which were received. These were precisely the sort of

matters which, under regulation 13(4) of the 2013 Regulations, ought to be considered in a

design statement. The petitioners had not set out why it was substantially prejudiced by the

absence of a design statement.

Analysis and decision

[17]

The discussion before me ultimately became a narrow one. In summary, the

petitioners' submission was that the absence of a design statement from the application for

planning permission vitiated the Permission upon which the installation presently in situ at

the bottom of Blackness Avenue depended. Had there been a design statement the impact

of the Permission on the immediate vicinity of the listed building at 5 Blackness Avenue,

and the character of the surrounding Conservation Area, would have been given proper

consideration. The respondents' submission was that there was no requirement for a design

statement, the installation of a docking station being in the nature of an engineering

operation. Even if such a requirement was held to exist it would not have raised any issues

not comprehensively addressed by the planning officer in the Report of Handling, and no

substantial prejudice had been suffered by the petitioners by its absence.

[18]

In attempting to address these competing positions, there is force in the petitioners'

submission that the respondents' characterisation of the installation of the docking station as

an engineering operation is one reached ex post facto. In the application for planning

permission (no 6/1 of process, p 6 of 7), the applicant answered the pro forma question

whether a design statement had been provided in terms of 2013 Regulations, that such was

"not applicable" to the application. That was against the background of the proposed

development site plainly being located within the conservation area, and therefore falling

within the scope of regulation 13(2), unless one of the specific exceptions in regulation 13(3)

applied. How the matter was addressed by the respondents is to be found in the affidavit of

Caitlin Duffy, who was the planning officer to whom the application for planning

permission was allocated. She deponed as follows:

"I therefore required to consider the siting, design, scale, amenity and visual impact

of the proposed development. As it was proposed to site the station adjacent to a

listed building within a conservation area, it was necessary to consider the impact of

the proposed development on the setting of the listed building and the character of

the conservation area. I was aware that a number of objections had been submitted

to the development, and it was therefore my role to consider these in the assessment

of the application. I did not consider the application to be a case where a design

statement was required, in comparison with and from knowledge of the nature and

scale of other applications/developments where I had previously required one."

[19]

If there had been a statutory basis for her not requiring the provision of a design

statement, it is surprising that that was not stated explicitly in Ms Duffy's affidavit. Absent

such a statement it is reasonable, in my view, to infer that Ms Duffy did not consider the

implications, for the application for planning permission, of regulation 13(3) of the

2013 Regulations (as opposed to conducting a comparison of the application with others in

which she had required a design statement). Close scrutiny of the respondents' pleadings

discloses that it is not expressly averred that she did so (cf. answer 6 b.), even although

elsewhere in the answers, and on various specific matters, there are references to the

respondents' appointed officer having exercised planning judgment, and nor did senior

counsel submit that she did. Rather, he did not appear to demur from the suggestion put by

the court that the passage in her affidavit, quoted above, indicated that Ms Duffy had not

addressed her mind specifically to the question whether the development constituted an

engineering operation for the purposes of regulation 13(3). Moreover, the affidavit of her

manager, Mr Gray, again makes no reference to Ms Duffy, or anyone else, having concluded

that the installation of the docking station was an engineering operation at the time when

the application was submitted and considered. Instead it offers what is, in effect, an opinion

that the development could "reasonably be taken to constitute engineering operations".

[20]

That state of affairs renders somewhat sterile senior counsel's submission that

whether something amounted to an engineering operation was not a matter of statutory

construction and a question of law (as contended for by the petitioners), but rather a

question of planning judgment. As it happens I consider that his submission was correct,

and that whether or not a particular operation constituted an engineering operation was a

matter of judgment for the decision maker, based on the facts presented, or on inference

from those facts (Coleshill & District Investment Co. Ltd. [1969] 1 WLR 746, pp 756A-E;

760B-E). But that was a judgment which ought properly to have been made at the time

when the application for planning permission, minus the design statement, was submitted

because the land to which the application related was situated in a conservation area, and

prima facie the requirement for a design statement in regulation 13(2), consistent with

paragraph 4.9 of the Local Development Plan, was engaged. (Senior counsel submitted that

paragraph 4.9 of the Local Development Plan was textual rather than a policy, and that it

was the policies of the Local Development Plan (and, in particular, policy 1) against which a

proposal required to be considered. That is no doubt correct. But the text is relevant in as

much as it may be taken to inform the process by which the respondents envisage that the

policy objectives will be capable of achievement).

[21]

The nature and appearance of the docking station, as clearly illustrated in the

photograph lodged at no 6/9 of process, might induce on the part of many a degree of

scepticism about the respondents' late characterisation of the installation of the docking

station as an engineering operation. If it was necessary to decide that issue, I should have

been inclined to the view, in coming to it, that those features, taken with the obvious

intention of the applicant that the docking station be permanently located, as street

furniture, within the conservation area, immediately adjacent to a listed traditional west end

tenement, militated against a concentration on the process of installation rather than the end

result. However, it is unnecessary to resolve the question either way. The point is that

unless the relevant planning officer, in this case Ms Duffy, determined at the time that the

installation of the docking installation constituted an engineering operation, the requirement

for a design statement was applicable, and the application for planning permission was

erroneous to state otherwise. Whatever conclusion she would have reached on the facts at

that time cannot now be determined because it does not appear that any such judgment was

exercised at all. That constituted a procedural failure in the planning process.

[22]

The issue then comes to be whether that failure justifies the granting of decree of

declarator that the Permission was ultra vires and of no effect. In that respect, the petitioners

aver that "had there been a design statement the impact the permission ha[d] on the

immediate vicinity of the listed building and Conservation Area would have been given

proper consideration". Counsel for the petitioners refined that position in the course of

argument to the proposition that, had there been a design statement, it was possible that a

different decision may have been reached. He also submitted that the issue of material

prejudice did not arise. It was enough that there was a statutory requirement which had not

been followed. Conversely, senior counsel for the respondents submitted that a design

statement would not have raised any issues not comprehensively addressed in the Report of

Handling. If there had been a procedural error, the petitioners had not suffered any

substantial prejudice (Walton v Scottish Ministers [2012] UKSC 44, paragraph [112], per

Lord Carnwath). The court should refuse the remedy sought.

[23]

The failure, which I have found to have occurred in this case, is procedural in

character. I accept the respondents' submission that, absent any substantive defect, it is

open to the court to refuse a remedy where no substantial prejudice has been shown

(Walton v Scottish Ministers, supra.; De Smith's Judicial Review (8th Edition, paragraph 17-034).

Given the petitioners' contention that, had a design statement accompanied the application,

a different decision may have been reached, one might have expected their argument to

illustrate, by reference to the Report of Handling, those aspects of the planning officer's

assessment which were rendered deficient by its absence. But counsel for the petitioners

made it clear during the course of his submissions that the petitioners no longer insisted in

those arguments advanced in the petition which identified conflict between the Permission

and the relevant policies set out in the Local Development Plan (and, in particular,

policies 49 and 51, and the statement set out in paragraph 8.60 concerning compatibility with

national policy and best practice guidance, and particularly Historic Environment Scotland

Policy Statement 3 ("HEP3")).

[24]

Against that background there is a superficial attraction to senior counsel's argument

that proper consideration was given to the impact of the installation on the immediate

vicinity of the listed building and Conservation Area, and that accordingly the absence of a

design statement can have had no practical consequence. To illustrate that point he

submitted that the Report on Handling addressed the twin issues of noise and "activity"

associated with the use of the docking station and concluded in a manner which was no

longer criticised that these features were not of sufficient weight to justify refusing the

application. Similarly, the Report of Handling set out conclusions on the key relevant

considerations in relation to the application of policies 49 and 51 of the Local Development

Plan and the Conservation Area. As regards HEP3, senior counsel submitted that the Report

of Handling identified that there would be no detrimental impact on the Conservation Area.

That was a planning judgment for the relevant officer to make and she had done so.

[25]

However, I have ultimately come to the view that it would be inappropriate for the

court, in the exercise of its discretion, to refuse the petitioners any remedy on this basis. I do

not consider that it can be said with confidence that the outcome would not have been

affected if, after proper consideration of the question, the respondents had required the

submission of a design statement. The requirements for a design statement are clearly set

out in regulation 13(4) of the 2013 Regulations. These include the requirement for an

appraisal of the context of the development, how its design has taken that context into

account, and what consultation has been undertaken on issues relating to the design

principles and concepts that have been applied. It is, of course, correct that the requirement

relating to consultation is qualified, in regulation 13(4) by the words "if any". But the point

is that the process envisaged is one which is underpinned by clarity and openness about

what is being proposed. That much is clear from the extracts from PAN 68, to which I was

referred by counsel for the petitioners.

[26]

The difficulty I have with the respondents' argument is that it appears to assume that

a design statement is intended only for consideration by the planning authority. But that

cannot be correct. Regulation 18 of the 2013 Regulations requires the planning authority to

give notice of an application for planning permission to the "Owner, Lessee or Occupier" of

neighbouring land. It no longer appears to be disputed that that was done in the instant

case. Regulation 18(3) requires the notice to contain certain information about the

application, including a statement as to "how the application, plans or drawings relating to

it and other documents submitted in connection with it may be inspected". Similar wording

is employed in the public notice (no 7/5 of process), which no doubt reflects the statutory

wording of the relevant regulation (which is stated in the notice, perhaps erroneously, to be

regulation 5 of the Town and Country Planning (Listed Buildings and Conservation Areas)

(Scotland) Regulations 1987; the wording is now reflected in regulation 8 of the Planning

(Listed Building Consent and Conservation Area Consent Procedure) (Scotland) Regulations

2015). The wording is also reflected in the terms of the newspaper advertisement (no 7/4 of

process). The conclusion is unavoidable that any design statement accompanying the

application for planning permission would have been available for scrutiny by the public

along with the application itself, even if not before the application was submitted. That

serves to illustrate why it is that a design statement is a communication tool which enables

others within the local community to understand the design rationale of a particular

proposal and, ultimately, to participate in the planning process.

[27]

It is impossible to know what the outcome of the process of public notification would

have been had a design statement accompanied the application for planning permission in

this case. One certainly cannot assume that the same five objectors, or only those five

objectors, would have come forward with the same objections. It is significant though that,

had there been one more objection, the matter would require to have been considered by a

committee of the respondents. It is again no doubt correct, as the respondents aver in

answer 5, that the committee would have had the same obligations in relation to the

determination of the application as the appointed officer, Ms Duffy. But it does not follow

that the committee would have reached the same conclusion as she did.

[28]

Accordingly, I reject the respondents' submission that the petitioners can show no

substantial prejudice arising from the procedural error which I have found to have occurred

in this case. My conclusion that there was a procedural failure to address the question

whether a design statement should have been submitted does of course leave open the

possibility that, on reconsideration, the respondents will take the view that it is unnecessary.

But that decision-making process, advised by the terms of regulation 13(2) and (3) of the

2013 Regulations, must still be followed.

Conclusion

[29]

It was not suggested by the respondents that the remedy sought was not one which

could properly be granted if I were otherwise prepared to grant the petition. Accordingly I

shall grant decree of declarator that the planning permission purportedly granted on

1 September 2020 for the installation of an e-bike docking station containing 10 docking

points and a terminal at 5 Blackness Avenue, Dundee, is ultra vires and of no effect. All

issues of expenses are reserved.